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This legislative Proposal forms part of a set of measures proposed by the Commission to reinforce the protection of Europe's external borders, including European cooperation on coastguard function, which also includes proposals for a Regulation establishing a European Border and Coast Guard Agency and to amend Council Regulation (EC) No 768/2005 establishing a European Fisheries Control Agency.

The initiative’s main objective is to reinforce the protection of Europe’s external borders and to develop more effective services to national authorities carrying out coastguard functions. Moreover, according to the proposal, the European Border and Coast Guard Agency, the European Maritime Safety Agency (EMSA) and the European Fisheries Control Agency will increase their cooperation to meet the above mentioned objectives, especially in using drones in airborne surveillance.

According to the Commission: “This Proposal is consistent with the policy objectives of the European Maritime Transport Policy until 2018 and of the European Maritime Safety Agency which was established with the purpose of ensuring a high, uniform, and effective level of maritime safety, maritime security, prevention of, and response to, pollution caused by ships. It is at the heart of the EMSA's mission, competencies and activities with maritime administrations and bodies carrying out coast guard functions.”

Government’s Position

One of the fundamental elements found in both the proposals for the European and Border and Coast Guard Agency (EBCG) Regulation and amendments to the EMSA founding Regulation is the cooperation between the new Agency and EMSA to support the national authorities carrying out coast guard functions by providing services, information, equipment and training, as well as by coordinating multipurpose operations. Therefore such cooperation with EMSA would aim to support the national coast guards, and this particularly through EMSA sharing information of data available in ship reporting systems; providing surveillance and communication services based on state-of-the-art technology; and providing training.

It is also important to note that, in terms of the proposed new Article 2b(1) of the Proposal to amend the EMSA Regulation, EMSA shall, in cooperation with the EBCG Agency, support national coastguards at national and Union level, and where appropriate at international level. According to the proposal, this cooperation would include the sharing of information generated by fusing and analysing data available in ship reporting systems and other information systems hosted by or accessible to the agencies. One issue that might arise is the confidentiality of data. In fact the proposal recognises that this is without prejudice to the ownership of data by Member States. However this might be difficult to reconcile with the concept of cooperation at international level and with who is such data to be shared.

The Government has concerns with this Proposal on the basis that it contains provisions which appear to go beyond the objective and scope of such proposal. The description of “coastguard functions” in recital 1 refers to a number of functions which go beyond aspects of border control. Given the main objectives of this proposal, the main focus should be limited to aspects related to border control rather than cover all the “coastguard functions” referred to in recital 1.

It is also pointed out that different Member States have different set-ups in respect of the different obligations/functions mentioned in recital 1. That is, maritime safety, security, search and rescue, border control, fisheries control, customs control, general law enforcement and environmental protection may not all necessarily be classified as coastguard functions in the different Member States. If this recital remains in the current wording, coastguard functions will be given a very broad interpretation, implying that the new legislation would cover all such functions and therefore extend the powers of EMSA beyond that necessary.

Other aspects of concern with the proposal include the following:

- As to the mention of relevant staff, it highlighted that it is national competence to ensure that national authorities have the requisite staff.

- The aspect of “capacity sharing” is considered too wide a concept.

- The provision related to the development of practical handbooks gives unlimited discretion to the Commission to adopt recommendations which may prove to be quasi binding, without going through the normal consultation process with Member States. Furthermore, such recommendations are not limited to cooperation at Union level but also include the national and the international level, where there may be lack of competence to develop Union instruments. In addition this gives carte blanche to the Commission to introduce any aspect it deems fit in such practical handbook as there are no limitations in terms of what such handbook may contain.

- Reference to cooperation with international organisations may create concerns in view of the impact it may have on the exchange of information and external representation of Member States at EU level.

- The aspect relating to the use of remotely piloted aircraft raises concerns, particularly in view of the fact that such aspect in the context of EMSA is mainly foreseen for the purposes of enforcing EU maritime and environment legislation rather than in the control of the Union’s external borders. This also ties in with the very broad reference to “coastguard functions” in recital 1.